MOHAMMAD (Migration)

[2019] AATA 3964

MOHAMMAD (Migration) [2019] AATA 3964 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ABDUL MANNAN MOHAMMAD

CASE NUMBER:  1700470

HOME AFFAIRS REFERENCE:                BCC2016/3220329

MEMBER:Lilly Mojsin

DATE:20 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 20 February 2019 at 11:03am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – satisfactory course progress – enrolment in a registered course – applicant ceased course – applicant further completed courses since enrolment was cancelled – family health issues – decision under review set aside      

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Maan v MIAC (2009) 179 FCR 581  

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant first arrived in Australia on 19 January 2015 as the holder of Student TU573 visa.

3. The delegate cancelled the visa on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

4. The issue in the present review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present review, the applicant’s visa was cancelled on the basis the applicant had not complied with Condition 8202(3)(a).

8. On 15 August 2016 the Lan-Grove Office Training Centre Pty Ltd certified the applicant as ‘not achieving satisfactory course progress’ for section 19 of the Education Services for Overseas Students (ESOS) Act 2000 and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 in relation to a Diploma of Leadership and Management.

9. The Department notified the applicant on 23 December 2016, by Notice of Intention to Consider Cancellation [NOICC], of its intention to consider cancellation.

10. On 4 January 2017 the applicant responded. The applicant did not dispute that there were grounds for cancellation stating:

    "I do agree and understand that I have failed to achieve satisfactory course progress but I still believe that SBTA was harsh and unfair in not allowing me to enrol in my course again as I have failed since I was depressed because of my mother’s brain tumour."  "I want to really improve on my shortcomings and sincerely request you to please consider my case. I am studying very hard and am putting in my best efforts and have already started faring well. I believe that I deserve a chance to prove my mettle and come out with flying colours and thus my visa should not be cancelled."

11. The applicant further explained that

    ·He knew nobody and was all alone;

    ·He was unable to understand the accent and language was homesick and was struggling to fend for himself which had an adverse affect on his studies;

    ·He has been under enormous pressure due to his mother's ill health;

    ·He believes that it was unfair and harsh of the Department not to allow him to re-enrol after he failed his course due to depression.

    REASONS AND FINDINGS

12. The issue in the present review is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

13. Condition 8202, as it applies in this review, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

    ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

14. In the present review, the applicant’s visa was cancelled on the basis that the education provider for the course being undertaken by the applicant, had certified the applicant as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (the ESOS Act), and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code).

15. For this requirement, it is the certification by the education provider as to breach of its course progress policies that constitutes the breach of condition, and not the unsatisfactory progress itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].

16. As the education provider has certified the applicant as not achieving satisfactory course progress within the terms of condition 8202(3)(a), the applicant has not complied with condition 8202(3).

17. The applicant acknowledged that he did not achieve satisfactory course progress in his Diploma of Leadership and Management studies. The Tribunal finds that as the education provider has certified the applicant as not achieving satisfactory course progress the applicant has not complied with condition 8202(3).

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

19. Prior to receiving the NOICC the applicant enrolled in a Diploma of Business on 31 October 2016. He completed the course in 2017 but was unable to enrol in a Bachelor of Business due to his visa condition.  He now seeks to complete his course. 

20. Addressing PAM3 criteria:

    ·The purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

21. The applicant’s purpose of a student visa is to enable the visa holder to undertake study in Australia. The applicant did not achieve satisfactory course progress in his Diploma of Leadership and Management studies.

22. The Tribunal finds the applicant's breach of condition 8202 of his visa to be significant because he did not achieve satisfactory course progress for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

23. The Tribunal questioned the applicant as to whether there are any compelling reasons for the applicant to remain in Australia. The applicant did not give evidence of any compelling reasons to stay in Australia and the Tribunal finds there are no compelling reasons for the applicant to remain in Australia.

24. The applicant's failure in his studies for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    ·The extent of compliance with visa conditions

25. Other than a breach of condition 8202 there is no evidence before the Tribunal that the applicant has breached any other conditions of his visa.

26. The Tribunal weighs this factor in favour of not cancelling the visa.

    ·Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members

27. The applicant has achieved a Diploma of Business since his failure studying a Diploma of Leadership and Management. He seeks to complete his studies by obtaining a Bachelor of Business. His family presently support him whilst he awaits the outcome of this review. His family have expended large sums of money to keep him in Australia until he obtains a qualification to enable him to obtain employment on his return to India.

28. The Tribunal is mindful that studying in Australia as an overseas student is costly for a student’s family and supporting the applicant whilst he awaits the outcome of this review and then attempts to complete his qualifications amounts to financial hardship Therefore the Tribunal weights this factor in favour of not cancelling the visa.

    ·Circumstances in which ground of cancellation arose.

29. The applicant was granted the visa to undertake specified studies in Australia. He did not achieve satisfactory course progress in the Diploma of Leadership and Management. The Tribunal has had regard to the applicant's response to the NOICC and his evidence given to the Tribunal. The Tribunal accepts that he arrived in Australia from India in January 2015.  There was no one in Brisbane that he knew to help him so that he transferred to Sydney in July 2015. His mother, subsequently, was diagnosed with a brain tumour and he travelled back to India to see his mother. Prior to the issue of the NOICC he transferred to another course that he has now successfully completed.

30. The applicant has achieved a Diploma of Business since his failure studying a Diploma of Leadership and Management. He seeks to complete his studies by obtaining a Bachelor of Business. He does not work and his family presently support him whilst he awaits the outcome of this review. His family have expended large sums of money to keep him in Australia until he obtains a qualification to enable him to obtain employment on his return to India.

31. The Tribunal weighs this factor in favour of not cancelling the visa.

    ·Past and present behaviour of the visa holder towards the department

32. There is no evidence before the Tribunal to suggest that the applicant’s past and present behaviour towards the Department has been adverse. There is no evidence before the Tribunal that the applicant has not been co-operative with the Department. There is nothing to suggest that the applicant has been other than compliant in his dealings with the Department.

33. The Tribunal weighs this factor in favour of not cancelling the visa.

    ·Whether there would be consequential cancellations under s.140

34. There are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal notes that there is no information before it to indicate that any other person currently holds a visa because the applicant held his visa. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

    ·Whether there are mandatory legal consequences

35. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

36. The circumstances in which ground of cancellation arose were not due to a relationship breakdown. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Lilly Mojsin
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.